Department of Natural Resources v. Wisconsin Court of Appeals, District IV , 380 Wis. 2d 354 ( 2018 )

2018 WI 25
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1980-W
COMPLETE TITLE: State of Wisconsin ex rel. Department of Natural
Resources,
Petitioner,
v.
Wisconsin Court of Appeals, District IV, Clean
Wisconsin, Inc., Lynda A. Cochart, Amy Cochart,
Roger D. DeJardin, Sandra Winnemueller, Chad
Cochart and Kinnard Farms, Inc.,
Respondents.
PETITION FOR SUPERVISORY WRIT
OPINION FILED: April 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 15, 2017
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents joined by A.W. BRADLEY
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs filed by Kevin M.
LeRoy, deputy solicitor general, with whom on the briefs were
Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor
general. There was an oral argument by Kevin M. LeRoy.
For the respondents Clean Wisconsin, Inc., Lynda A.
Cochart, Amy Cochart, Roger D. DeJardin, Sandra Winnemueller,
and Chad Cochart, there was a brief filed by Sarah Geers and
Midwest Environmental Advocates, Madison, with whom on the brief
were Katie Nekola and Clean Wisonsin, Inc., Madison. There was
an oral argument by Sarah Geers.
For the respondent Wisconsin Court of Appeals, District IV,
there was a brief filed by John S. Skilton and Perkins Coie LLP,
Madison. There was an oral argument by John S. Skilton.
2
2018 WI 25
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1980-W
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Department of
Natural Resources,
Petitioner, FILED
v.
APR 3, 2018
Wisconsin Court of Appeals, District IV, Clean Sheila T. Reiff
Wisconsin, Inc., Lynda A. Cochart, Amy Cochart, Clerk of
Roger D. DeJardin, Sandra Winnemueller, Chad Supreme Court
Cochart and Kinnard Farms, Inc.,
Respondents.
PETITION for supervisory writ. Granted; rights declared;
and stay on appeal lifted.
¶1 DANIEL KELLY, J. The Wisconsin Department of Natural
Resources ("DNR") says its appeal in Clean Wisconsin, Inc. v.
DNR, 2016AP1688 ("Clean Wisconsin") is pending in the wrong
district, and asks us to exercise our supervisory authority to
shepherd it to the correct venue. Because we agree with the
DNR, we grant its petition for a supervisory writ and vacate the
order of the Wisconsin Court of Appeals transferring venue for
Clean Wisconsin from District II to District IV.
No. 2016AP1980-W
¶2 We accepted review because this case presents an
important issue of first impression regarding the right of an
appellant to select appellate venue under Wis. Stat. § 752.21(2)
(2015-16).1
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 The dispute giving rise to this petition for a
supervisory writ involves the DNR's decision to reissue a
Wisconsin Pollutant Discharge Elimination System ("WPDES")
permit to Kinnard Farms, Inc. ("Kinnard Farms"), a dairy farm in
Kewaunee County. After a group of five individuals (led by
Lynda A. Cochart, hereinafter the "Cochart Petitioners")
contested the decision, an administrative law judge concluded
the permit should issue, but only with the addition of two
conditions to which Kinnard Farms objected.2 Kinnard Farms filed
a petition with the DNR requesting removal of the conditions.
The DNR initially denied the petition, but upon reconsideration
found that "[n]either [of the conditions] may be imposed upon
Kinnard [Farms] in this case, and therefore, these conditions
will not be added to or modified into the WPDES Permit."
¶4 Clean Wisconsin, Inc. ("Clean Wisconsin") and the
Cochart Petitioners each filed petitions seeking judicial review
of the DNR's decision. Clean Wisconsin filed in Dane County
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
The nature of the conditions is not material to our
analysis.
2
No. 2016AP1980-W
(the county of its residence), while the Cochart Petitioners
filed in Kewaunee County (the county of their residence). The
Circuit Court for Dane County, as the court in which the first
petition was filed, exercised its statutorily-granted discretion
to consolidate the Kewaunee County case into the Dane County
case.3 Subsequently, the Dane County Circuit Court entered
judgment on the merits in favor of Clean Wisconsin and the
Cochart Petitioners, restoring the contested permit conditions
that the DNR had rejected. We will refer to Clean Wisconsin and
the Cochart Petitioners collectively as the "Administrative
Petitioners" so that we may more conveniently distinguish their
arguments from those of the Court of Appeals when they diverge.
¶5 The DNR appealed the circuit court's decision, and
selected District II as the appellate venue. A single court of
appeals judge (sitting in District IV) issued an order, sua
sponte, transferring venue from District II to District IV on
August 31, 2016. The judge, relying on Wis. Stat. § 752.21(1),
wrote that District IV is the proper venue because it
encompasses the circuit court that issued the judgment from
which the DNR appealed. The DNR moved for reconsideration. It
asserted that § 752.21(2) gave it the right to select appellate
venue because Clean Wisconsin had designated the circuit court
venue. Sitting as a three-judge panel in District IV, the Court
of Appeals denied the motion on September 29, 2016.
3
See Wis. Stat. § 227.53(1)(a)3.
3
No. 2016AP1980-W
¶6 Approximately two weeks later, the DNR petitioned this
court for a supervisory writ requiring the Court of Appeals to
transfer venue back to District II. We stayed the appeal and
asked the respondents for a response to the petition. We
subsequently ordered full briefing and argument.
II. DISCUSSION
A. Supervisory Writs
¶7 The authority to issue supervisory writs depends on
the constitutional grant of jurisdiction to this court. In
relevant part, our constitution says:
(1) The supreme court shall have superintending and
administrative authority over all courts.
(2) The supreme court has appellate jurisdiction over
all courts and may hear original actions and
proceedings. The supreme court may issue all writs
necessary in aid of its jurisdiction.
(3) The supreme court may review judgments and orders
of the court of appeals, may remove cases from the
court of appeals and may accept cases on certification
by the court of appeals.
Wis. Const. art. VII, § 3. We have previously observed that
with the grant of jurisdiction come all the writs necessary to
give it effect:
The framers of the constitution appear to have well
understood that, with appellate jurisdiction, the
court took all common law writs applicable to it; and
with superintending control, all common law writs
applicable to that; and that, failing adequate common
law writs, the court might well devise new ones, as
Lord Coke tells us, as "a secret in law."
4
No. 2016AP1980-W
Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425, 515 (1874)
(construing our original constitution4); see State v. Buchanan,
2013 WI 31, ¶11, 346 Wis. 2d 735, 828 N.W.2d 847 ("As the court
of original jurisdiction, we have discretion to issue a
supervisory writ."); Madison Metro. Sch. Dist. v. Cir. Ct. for
Dane Cty., 2011 WI 72, ¶74, 336 Wis. 2d 95, 800 N.W.2d 442
(2011) (stating that "a supervisory writ is dedicated to the
discretion of the court of original jurisdiction").
¶8 "A supervisory writ is 'a blending of the writ of
mandamus and the writ of prohibition.'" Madison Metro. Sch.
Dist., 336 Wis. 2d 95, ¶74 (citation omitted). The court
traditionally uses the writ of prohibition "to keep an inferior
court from acting outside its jurisdiction when there [is] no
adequate remedy by appeal or otherwise." Id., ¶76 (internal
marks and citation omitted). The writ of mandamus, on the other
hand, directs "a public officer to perform his plain statutory
duties." Id., ¶75 (citing Menzl v. City of Milwaukee, 32
Wis. 2d 266, 275-76, 145 N.W.2d 198 (1966)). Thus, the
4
The original provision of the 1848 Wisconsin Constitution,
Wis. Const. art. VII, § 3, read:
The supreme court, except in cases otherwise provided
in this constitution, shall have appellate
jurisdiction only, which shall be coextensive with the
state; but in no case removed to the supreme court
shall a trial by jury be allowed. The supreme court
shall have a general superintending control over all
inferior courts; it shall have power to issue writs of
habeas corpus, mandamus, injunction, quo warranto,
certiorari, and other original and remedial writs, and
to hear and determine the same.
5
No. 2016AP1980-W
supervisory writ "serves a narrow function: to provide for the
direct control of lower courts, judges, and other judicial
officers who fail to fulfill non-discretionary duties, causing
harm that cannot be remedied through the appellate review
process." State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004
WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110. A supervisory writ
is "an extraordinary and drastic remedy that is to be issued
only upon some grievous exigency." Id., ¶17 (internal marks and
citation omitted).
¶9 A party may request a supervisory writ from this court
by petition.5 Wis. Stat. § (Rule) 809.71. To justify the writ,
a petitioner must demonstrate that: "(1) an appeal is an
inadequate remedy; (2) grave hardship or irreparable harm will
result; (3) the duty of the trial court is plain and
it . . . acted or intends to act in violation of that duty; and
(4) the request for relief is made promptly and speedily."
Kalal, 271 Wis. 2d 633, ¶17 (citation omitted). Our
deliberation on whether to issue the writ "is controlled by
equitable principles and, in our discretion, we can consider the
5
The requirement that an aggrieved party must first seek
such a writ from the court of appeals is excused here, of
course, because the writ, if granted, would lie against that
court. Wis. Stat. § (Rule) 809.71 ("A person seeking a
supervisory writ from the supreme court shall first file a
petition for a supervisory writ in the court of appeals under s.
809.51 unless it is impractical to seek the writ in the court of
appeals. A petition in the supreme court shall show why it was
impractical to seek the writ in the court of appeals or, if a
petition had been filed in the court of appeals, the disposition
made and reasons given by the court of appeals.").
6
No. 2016AP1980-W
rights of the public and third parties." Id. (internal marks
and citation omitted).
¶10 We will consider only the first three factors
identified above——the respondents do not contest the timeliness
of the DNR's petition, and we agree that filing within two weeks
of the Court of Appeals' order denying the motion for
reconsideration is, under these circumstances, unquestionably
"prompt and speedy." For the sake of analytical clarity, our
opinion addresses the three factors in the following order. We
begin with whether the Court of Appeals will violate a plain
duty to hear the DNR's appeal in the proper district if the
venue-transfer order stands. Then, we will consider whether an
appeal would be an inadequate remedy. And finally, we will
determine whether the DNR will suffer grave hardship or
irreparable harm if the writ does not issue.
B. Plain Duty
1. Existence of the Duty
¶11 We start with determining whether the Court of Appeals
has a plain duty to hear the DNR's appeal in the proper venue.
A plain duty is one that is "clear and unequivocal and, under
the facts, the responsibility to act [is] imperative." Id., ¶22
(internal marks and citation omitted). "[C]lear and
unequivocal" does not require the duty to be settled or obvious.
There may be a plain duty even when it involves "a novel
question of law requiring harmonization of several statutory
7
No. 2016AP1980-W
provisions." See Madison Metro. Sch. Dist., 336 Wis. 2d 95,
¶84.6
¶12 Appellate venue is governed by Wis. Stat. § 752.21,
which provides, in toto:
(1) Except as provided in sub. (2), a judgment or
order appealed to the court of appeals shall be heard
6
The dissent suggests this directive is at odds with State
ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶81,
363 Wis. 2d 1, 866 N.W.2d 165. It asserts that this court
"reaffirmed that the obligation of a judge to correctly apply
the law 'is not the type of plain legal duty contemplated by the
supervisory writ procedure.'" Dissent, ¶64 (quoting Two Unnamed
Petitioners, 363 Wis. 2d 1, ¶81). The dissent overlooked that
the court was speaking to categories of duties, not the clarity
with which the law imposes them. The court in Two Unnamed
Petitioners was distinguishing between the court's general
obligation to accurately apply the law to the facts of any given
case, on the one hand, and on the other, those directives aimed
at the court qua judicial tribunal, mandating how it is to carry
out specific aspects of its work. The former category contains
those matters that are the subjects of appeals. With respect to
the latter, however, the court observed that supervisory writs
"provide for the direct control of lower courts, judges, and
other judicial officers who fail to fulfill non-discretionary
duties, causing harm that cannot be remedied through the
appellate review process." Two Unnamed Petitioners, 363
Wis. 2d 1, ¶81 (quoting State ex rel. Kalal v. Cir. Ct. for Dane
Cty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110)
(emphasis in original). When the court is under an obligation
to do its business in a specific manner, a supervisory writ can
be a proper method of ensuring it does so. That is why Two
Unnamed Petitioners can comfortably co-exist with Madison Metro.
The former addresses category, while the latter addresses
clarity. Consequently, a court's duty, even when it derives
from the "harmonization of several statutory provisions," is
still the proper subject of a supervisory writ so long as it
falls into the proper category. See Madison Metro. Sch. Dist.
v. Cir. Ct. for Dane Cty., 2011 WI 72, ¶84, 336 Wis. 2d 95, 800
N.W.2d 442.
8
No. 2016AP1980-W
in the court of appeals district which contains the
court from which the judgment or order is appealed.
(2) A judgment or order appealed from an action venued
in a county designated by the plaintiff to the action
as provided under s. 801.50(3)(a) shall be heard in a
court of appeals district selected by the appellant
but the court of appeals district may not be the court
of appeals district that contains the court from which
the judgment or order is appealed.
¶13 The first subsection of Wis. Stat. § 752.21 contains
the general rule controlling appellate venue. The second
subsection contains a specific rule, which applies only to the
subset of cases in which the plaintiff designated venue in the
circuit court pursuant to Wis. Stat. § 801.50(3)(a). However,
both the general and specific rules speak in mandatory terms.
The general rule uses the mandatory "shall" in requiring the
court to hear the appeal in the district encompassing the
circuit from which the appeal is taken.7 The specific rule, when
applicable, is no less mandatory in its requirement that the
court hear the appeal in the district selected by the appellant.
Thus, regardless of whether the general or specific rule
determines venue, the court of appeals has no discretion with
respect to where it must hear the appeal. Further, the correct
venue does not depend on uncertain factual developments or
7
"The general rule is that the word 'shall' is presumed
mandatory when it appears in a statute." Karow v. Milwaukee
Cty. Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214
(1978) (citation omitted); Heritage Farms, Inc. v. Markel Ins.
Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465 (stating
that when construing a statute, "we presume that the word
'shall' is mandatory" (citation omitted)).
9
No. 2016AP1980-W
circumstances outside the contemplation of the statute. Nor
does the court of appeals have the option of not acting: The
appeal must be heard somewhere. Therefore, the obligation to
venue the appeal in the correct district is clear, unequivocal,
and mandatory. It is, therefore, a "plain duty" within the
meaning of our supervisory writ jurisprudence.
2. Compliance with the Duty
¶14 Whether the Court of Appeals acted consonantly with
its plain duty when it transferred the DNR's appeal from
District II to District IV depends on the requirements of three
statutes, all of which have something to say about venue in this
case. The statute controlling appellate venue is Wis. Stat.
§ 752.21, which we quoted above. Then there is Wis. Stat.
§ 801.50(3)(a), which governs circuit court venue. And finally,
there is Wis. Stat. § 227.53(1)(a)3., which restricts venue
eligibility for administrative appeals such as the one sub
judice.
¶15 We determine the meaning of these statutes by focusing
on their text, context, and structure. "[S]tatutory
interpretation 'begins with the language of the statute," and we
give that language its "common, ordinary, and accepted meaning."
Kalal, 271 Wis. 2d 633, ¶¶45-46 ("Context is important to
meaning. So, too, is the structure of the statute in which the
operative language appears. Therefore, statutory language is
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes . . . ."). In
10
No. 2016AP1980-W
performing this analysis, we carefully avoid ascribing an
unreasonable or absurd meaning to the text. Id., ¶46
("[S]tatutory language is interpreted . . . reasonably, to avoid
absurd or unreasonable results."). We may also look to the
statute's history where, as here, there has been a significant
revision to the language in which we are interested. Cty. of
Dane v. LIRC, 2009 WI 9, ¶27, 315 Wis. 2d 293, 759 N.W.2d 571
("'A review of statutory history is part of a plain meaning
analysis' because it is part of the context in which we
interpret statutory terms." (citation omitted)). If we
determine the statute's plain meaning through this methodology,
we go no further. Kalal, 271 Wis. 2d 633, ¶45 ("If the meaning
of the statute is plain, we ordinarily stop the inquiry."
(internal marks and citation omitted)). See generally Daniel R.
Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969
(2017).
a. Applicability of Wis. Stat. § 801.50(3)(a)
¶16 The presenting question is whether the general or
specific appellate venue rule of Wis. Stat. § 752.21 is
operative in this case. According to the express terms of that
statute, the answer depends on whether the circuit court venue
was "designated by the plaintiff" pursuant to Wis. Stat.
§ 801.50(3)(a). This statute, in turn, says that:
Except as provided in pars. (b) and (c),[8] all actions
in which the sole defendant is the state, any state
8
The exceptions mentioned here are not relevant to this
case:
(continued)
11
No. 2016AP1980-W
board or commission, or any state officer, employee,
or agent in an official capacity shall be venued in
the county designated by the plaintiff unless another
venue is specifically authorized by law.[9]
¶17 The Administrative Petitioners tell us that Wis. Stat.
§ 801.50(3)(a) cannot apply at all to these proceedings for two
reasons.10 First, they say it applies to "actions," not "special
proceedings" (like judicial review of administrative agency
decisions). And second, they say § 801.50(3)(a) cannot apply
because they were "petitioners" in the circuit court, and the
statute refers only to "plaintiffs."
¶18 With respect to the first objection, it is true that
§ 801.50(3)(a) refers only to "actions." But that term
encompasses "special proceedings" as well: "Proceedings in the
(b) All actions relating to the validity or invalidly
of a rule shall be venued as provided in s. 227.40(1).
(c) An action commenced by a prisoner, as defined
under s. 801.02(7)(a)2., in which the sole defendant
is the state, any state board or commission, or any
state officer, employee, or agent in an official
capacity shall be venued in Dane County unless another
venue is specifically authorized by law.
Wis. Stat. § 801.50(3)(b)-(c).
9
As an "administrative arm" of the state, the DNR is the
state for purposes of this venue provision. See Metzger v.
Dep't of Taxation, 35 Wis. 2d 119, 131, 150 N.W.2d 431 (1967)
(stating that the Wisconsin Department of Taxation is "a mere
administrative arm of the state" and, thus, suit against the
Department is an action against "the state" for sovereign
immunity purposes).
10
The Court of Appeals did not advance this argument in its
brief.
12
No. 2016AP1980-W
courts are divided into actions and special proceedings," and
"[i]n chs. 801 to 847, 'action' includes 'special proceeding'
unless a specific provision of procedure in special proceedings
exists." Wis. Stat. § 801.01(1). The rules of civil procedure
apply to both types of proceedings: "Chapters 801 to 847 govern
procedure and practice in circuit courts of this state in all
civil actions and special proceedings whether cognizable as
cases at law, in equity or of statutory origin except where
different procedure is prescribed by statute or rule."
§ 801.01(2); Wagner v. State Med. Examining Bd., 181
Wis. 2d 633, 639, 511 N.W.2d 874 (1994) ("[W]hen a conflict
occurs between the rules of civil procedure and ch. 227, the
dictates of ch. 227 must prevail."); State ex rel. Town of
Delavan v. Cir. Ct. for Walworth Cty., 167 Wis. 2d 719, 725, 482
N.W.2d 899 (1992) ("As chs. 801 to 847 apply to special
proceedings, sec. 801.58(7) necessarily applies to ch. 227
judicial reviews, unless foreclosed by different procedure
prescribed by ch. 227.").
¶19 Therefore, in the absence of a contrary provision in
chapter 227, it does not matter that the Administrative
Petitioners commenced this case as a "special proceeding" rather
than as an "action." Nor is this the first time we have used
Wis. Stat. § 801.50 in the specific type of special proceeding
known as "judicial review." See, e.g., Drow v. Schwarz, 225
Wis. 2d 362, 367, 592 N.W.2d 623 (1999), as amended on denial of
reconsideration (June 25, 1999) (§ 801.50 controlling venue in
certiorari review proceeding); Aparacor, Inc. v. DILHR, 97
13
No. 2016AP1980-W
Wis. 2d 399, 407, 293 N.W.2d 545 (1980) (§ 801.50 controlling
venue in judicial review proceeding); Johnson v. Berge, 2003
WI App 51, ¶11 n.3, 260 Wis. 2d 758, N.W.2d 418 ("The trial
court may consider whether to transfer the entire case to Dane
County pursuant to Wis. Stat. § 801.52, or whether to transfer
Johnson's Wis. Stat. ch. 227 claim to Dane County and itself
resolve Johnson's other issues."). The Administrative
Petitioners provided no authority for the proposition that
§ 801.50(3) cannot apply to judicial review of an agency
decision. Nor did they even acknowledge our opinions in
Aparacor, Inc. or Drow.
¶20 The second objection gives us no reason to doubt the
applicability of Wis. Stat. § 801.50(3)(a) because the party
denominations have no significance in this case. It is standard
practice to refer to the one who files the initiating document
in a special proceeding (such as a petition for judicial review)
as a "petitioner." And that, by itself, has never ousted
chapters 801 through 847 from their authoritative role. See
Wis. Indus. Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89,
¶¶1, 13, 342 Wis. 2d 576, 819 N.W.2d 240 (applying Wis. Stat.
§ (Rule) 809.61 to petition for judicial review under both Wis.
Stat. § 196.41 and Wis. Stat. § 227.52); Drow, 225 Wis. 2d at
362-66 (applying Wis. Stat. § 801.50 even though parties were
denominated as "petitioner" and "respondent"); Town of Delavan,
167 Wis. 2d at 721 (holding that Wis. Stat. § 801.58(7) applies
in a ch. 227 judicial review; also applying Wis. Stat.
§ (Rule) 809.61); Wis.'s Envtl. Decade, Inc. v. DILHR, 104
14
No. 2016AP1980-W
Wis. 2d 640, 644, 312 N.W.2d 749 (1981) (applying Wis. Stat.
§ 808.05(1) in case involving an underlying petition for
review). The Administrative Petitioners cite no authority for
the proposition that this difference in nomenclature has any
effect on the applicability of this statute. Consequently,
§ 801.50 applies to judicial review of an agency decision——but
only so long as it does not contradict a relevant chapter 227
provision.
¶21 And that brings us to the third venue-related statute
of interest. The respondents say Wis. Stat. § 227.53(1)(a)3.
conflicts with, and negates, a petitioner's ability to
"designate" venue pursuant to Wis. Stat. § 801.50(3)(a) by
requiring that it file its petition in its county of residence.
Specifically, § 227.53(1)(a)3. says that "[i]f the petitioner is
a resident, the proceedings shall be held in the circuit court
for the county where the petitioner resides." This is important
because, if the respondents are right, then the Administrative
Petitioners could not have "designated" venue for the circuit
court proceedings, which in turn would mean the general rule for
appellate venue (Wis. Stat. § 752.21(1)) would apply, instead of
the specific rule (§ 752.21(2)).
¶22 The heart of the contest between the DNR and the
respondents, therefore, lies in this question: Does a plaintiff
"designate" the county for circuit court venue even when Wis.
Stat. § 227.53(1)(a)3. specifies which county that must be?
15
No. 2016AP1980-W
b. Does "Designate" Mean "Choose"?
¶23 Each of the respondents' arguments circles back to a
central theme: The Administrative Petitioners cannot be
understood to have "designated" a county for venue (within the
meaning of Wis. Stat. § 801.50(3)(a)) unless they had the
ability to choose the county to designate. And, they say,
because Wis. Stat. § 227.53(1)(a)3. reduced their options to one
(their county of residence), there was no choice to be made, and
so they did no designating. To resolve this issue, we must
determine whether a plaintiff can "designate" venue even when
there is only one county in which the matter may be filed.
¶24 The operative sentence from Wis. Stat. § 801.50(3)(a)
comprises, as everyone agrees, a rule of general applicability
and an exception. The general rule is that "all actions in
which the sole defendant is the state . . . shall be venued in
the county designated by the plaintiff." § 801.50(3)(a). That
rule applies "unless another venue is specifically authorized by
law." Id. The respondents say the exception is operative in
this case because Wis. Stat. § 227.53(1)(a)3. represents
"another venue . . . specifically authorized by law," thereby
depriving the Administrative Petitioners of their choice of
county. The DNR, however, says the general rule remains in
effect. "Designating," it says, is not the same thing as
"choosing," and § 227.53(1)(a)3. simply told the Administrative
Petitioners which county to "designate."
16
No. 2016AP1980-W
¶25 Our practice is to give words their natural meaning,
and we often begin with respected dictionaries to find it.11
Here, they are of little help. The term "designate" is
perfectly capable of carrying the meanings proposed by both the
DNR and the respondents. One definition says the word means
"[t]o point out, indicate; to particularize, specify." 4 The
Oxford English Dictionary 520 (2d ed. 1989) (first definition).
So, as the DNR urges, "designated by the plaintiff" can be
reasonably understood to mean "indicated or specified by the
plaintiff," an act that does not necessarily require a choice.
Even if the action must be filed in one specific county, the DNR
says, the plaintiff still indicates or specifies that county
when filing. But "designated by the plaintiff" could equally
well mean "chosen by the plaintiff," because "designate" can
also mean "select." Id. at 521 (fifth definition). And if that
is what the phrase means, then none of the Administrative
Petitioners chose a county inasmuch as the choice was made by
Wis. Stat. § 227.53(1)(a)3. Because the definitions are in
equipoise, we will have to look elsewhere to determine whether
"designate" must mean "choose."
11
"In construing a statute, the general rule is that all
words and phrases should be construed according to common and
approved usage unless a different definition has been designated
by the statutes. We may resort to a dictionary to ascertain the
common and approved usage of a term not defined by the statute."
In re Commitment of Curiel, 227 Wis. 2d 389, 404-05, 597
N.W.2d 697 (1999); see Kalal, 271 Wis. 2d 633, ¶¶45, 54 (stating
that "[s]tatutory language is given its common, ordinary, and
accepted meaning," and looking at The American Heritage
Dictionary to determine plain meaning of statutory text).
17
No. 2016AP1980-W
¶26 The term "designate" entered our appellate and circuit
court venue statutes at the same time via 2011 Wisconsin Act 61.
So we next consider the text and structure of that act. The
entire purpose of the act was to change the treatment of venue
in both the circuit and appellate courts when the state is the
sole defendant, so it is brief and to the point. The parts that
interest us are §§ 2 and 3g, which provide in relevant part:
Section 2. 752.21(2) of the statutes is created to
read:
752.21 (2) A judgment or order appealed from an action
venued in a county designated by the plaintiff to the
action as provided under s. 801.50(3)(a) shall be
heard in a court of appeals district selected by the
appellant but the court of appeals district may not be
the court of appeals district that contains the court
from which the judgment or order is appealed.
Section 3g. 801.50(3) of the statutes, as affected by
2011 Wisconsin Act 21, is renumbered 801.50(3)(a) and
amended to read:
801.50(3)(a) All Except as provided in this subsection
pars. (b) and (c), all actions in which the sole
defendant is the state . . . shall be venued in Dane
County the county designated by the plaintiff unless
another venue is specifically authorized by law.
2011 Wis. Act 61, §§ 2, 3g ("Act 61").
¶27 "Designate," of course, appears in both § 2 (creating
the new appellate venue provision) and § 3g (amending the
circuit court venue provision). If we viewed § 3g of the act in
isolation, we could easily conclude that "designate" means
"choose." Before Act 61, a plaintiff suing the state was
required to file his case in Dane County. With the revision
introduced by Act 61, however, he may file in any county he
18
No. 2016AP1980-W
wishes. Thus, he must necessarily choose which it will be, and
"designate" is quite capable of describing that act. But when
we look at the act as a whole, which we are bound to do,12 we see
that the act of choosing is assumed as a predicate to the act of
designating.
¶28 When the legislature used the term "designated" in the
appellate venue section of the act (2011 Wis. Act 61, § 2), it
juxtaposed it against the term "selected." Whereas the
plaintiff "designates" venue in the circuit court, the appellant
"selects" venue in the court of appeals. When the legislature
uses different terms in the same act, we generally do not afford
them the same meaning. See Gister v. Am. Family Mut. Ins. Co.,
2012 WI 86, ¶33, 342 Wis. 2d 496, 818 N.W.2d 880 ("[W]here the
legislature uses similar but different terms in a statute,
particularly within the same section, we may presume it intended
the terms to have different meanings." (brackets in original)
(internal marks and citation omitted)); see Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
170 (2012) (defining canon of "Presumption of Consistent Usage"
as requiring, inter alia, that "a material variation in terms
suggests a variation in meaning"). So "designate" cannot mean
"select" in the context of § 2 of Act 61.
12
Kalal, 271 Wis. 2d 633, ¶46; see Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 167
(2012) (defining "Whole-Text Canon" as requiring that "[t]he
text must be construed as a whole").
19
No. 2016AP1980-W
¶29 Unlike "designate," "select" does not carry a
troubling multiplicity of definitions. In its transitive verb
form, it means one thing, and one thing only: "[t]o choose."
14 The Oxford English Dictionary 901 (2d ed. 1989). These terms
are not just in related statutes. They are in the same act, the
same section, and the same sentence. And the words were chosen
by the same legislature. With this degree of specificity and
particularity, we will not understand them to bear the same
meaning. Because "select" means "to choose," "designate"
cannot.13
13
The Court of Appeals agreed the words "designate" and
"select" must carry different meanings, but attempted to explain
the distinction between them without identifying any substantive
difference. Its brief said:
[I]n this interpretation the words do have different
meanings: "designate" is something that a plaintiff
does in circuit court, while "select" is something
that an appellant does in the court of appeals. It is
entirely reasonable that the legislature would choose
two different words for these different acts, so as to
avoid any potential confusion or commingling of the
two concepts. No further explanation is required to
explain why different words were used.
(continued)
20
No. 2016AP1980-W
¶30 This provides significant insight into what
"designated" means in the context of Wis. Stat. § 801.50(3)(a).
When the legislature uses a particular word more than once in an
act, we understand it to carry the same meaning each time,
absent textual or structural clues to the contrary. State ex
rel. Gebarski v. Cir. Ct. for Milwaukee Cty., 80 Wis. 2d 489,
495, 259 N.W.2d 531 (1977) (stating that "there is a natural
presumption that identical words used in different parts of the
same act are intended to have the same meaning" (quoting Atl.
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433
(1932)); see Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74,
¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the same term is
used throughout a chapter of the statutes, it is a reasonable
deduction that the legislature intended that the term possess an
identical meaning each time it appears."); DaimlerChrysler v.
LIRC, 2007 WI 15, ¶29, 299 Wis. 2d 1, 727 N.W.2d 311 ("It is a
Some further explanation would have been helpful. This
case turns on whether these words have distinct meanings, so
understanding how they describe different concepts is essential
to our analysis. But the Court of Appeals tells us only that
"designate" means "something," that "select" also means
"something," and that they are different depending on the court
in which they occur. That's not much to go on, especially when
the Court of Appeals, elsewhere in its brief, suggests the two
actually mean the same thing: "[T]he statutes at issue allow an
appellant to have a choice of forum when the plaintiff has a
choice of forum . . . ." If both "designate" and "select" mean
"choose," then the plaintiff in the circuit court and the
appellant in the court of appeals are doing the exact same
thing. So the Court of Appeals has not, in fact, offered an
explanation of how the act of "designating" differs from the act
of "selecting."
21
No. 2016AP1980-W
basic rule of construction that we attribute the same definition
to a word both times it is used in the same statute . . . .");
Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 663, 539 N.W.2d 98
(1995) ("[A]ttributing the same definition to a word both times
it is used in the same statute follows another basic principle
of statutory construction."); Scalia & Garner, supra ¶28, at 170
(defining canon of "Presumption of Consistent Usage" as
requiring, inter alia, that "[a] word or phrase is presumed to
bear the same meaning throughout a text"). We see no textual or
contextual reason to believe the legislature assigned the word
"designate" one meaning with respect to § 2 of the act, and a
different meaning in § 3g. Thus, because "designate" does not
mean "choose" in § 2, it cannot mean "choose" in § 3g either.14
14
The dissent says we should understand "designate" to mean
"choose" because that's how the Legislative Reference Bureau
understood it, and the Bureau forwarded its understanding of
Act 61 (then 2011 S.B. 117) to members of the legislature. See
dissent, ¶59. The dissent says the Bureau "explained that the
bill 'permitted' plaintiffs to designate the county within which
to bring an action." Id. Presumably, the dissent wishes us to
analyze the statute as though the legislature had adopted the
Bureau's language instead of the language upon which it actually
voted. Even if this substitution would justify the dissent's
preferred construction (on which we express no opinion), there
is nothing to suggest we should engage in this post hoc
transformation of Act 61.
(continued)
22
No. 2016AP1980-W
¶31 Therefore, when a plaintiff "designates" venue in the
circuit court, it means he is specifying venue, not choosing it.
The fact that Wis. Stat. § 227.53(1)(a)3. eliminates a
plaintiff's choice of venue would be of some moment only if Wis.
Stat. § 801.50(3)(a) speaks to the plaintiff's choice. It does
not. The choosing, if there is any choosing to be done, takes
place before the plaintiff designates venue;
section 801.50(3)(a) is not cognizant at all of whether a choice
preceded the designation.15 Because there is no conflict between
We can assume all legislators received the Bureau's memo.
But we have no idea how many read it, or whether the Bureau's
use of "permit" caught their attention or influenced their
understanding of the bill, or whether (assuming it did) the
Bureau's word-choice influenced their votes, and if it did,
whether a majority of each chamber was persuaded to adopt the
dissent's understanding of the language they enacted because the
Bureau used the word "permit" in its memo. So the dissent
raises an interesting historical question (to which we will
never know the answer), but it is a question that has nothing to
do with the plain meaning of Act 61. The same is true of the
"Fiscal Estimate Narrative" to which the dissent refers in
paragraph 60.
The dissent says we would show greater respect for the
legislators if we assumed the Bureau's memo changed their
understanding of their own bill. See dissent, ¶¶62-63. That
would seem an odd mark of respect. We believe it is much more
respectful to assume they are capable of adopting language that
expresses their intent, and that they did not adopt the Bureau's
language because they did not wish to.
15
The dissent says the phrase "designated by the plaintiff"
should have the same meaning in Wis. Stat. § 801.50(3)(a) as it
does in § 801.50(2)(d). Dissent, ¶54. We have no occasion to
construe paragraph (2)(d) today, and the dissent identified no
construction thereof that is at odds with our understanding of
paragraph (3)(a).
23
No. 2016AP1980-W
§ 801.50(3)(a) and § 227.53(1)(a)3., we apply them both and
conclude that even when the latter statute eliminates any
opportunity to choose a county, the plaintiff still designates
venue within the meaning of § 801.50(3)(a).
¶32 This, however, is only one step in the process of
understanding the interrelationship among the three venue-
related statutes. When two or more petitions challenge an
agency's decision, and when they are filed in different
counties, Wis. Stat. § 227.53(1)(a)3. gives the circuit court
authority to determine venue. Therefore, we must decide whether
the circuit court's exercise of that authority in this case
caused Dane County to be "another venue . . . specifically
authorized by law."
c. Other Authorized Venues
¶33 As we have already seen, the plaintiff's designation
controls venue in a case solely against the state, "unless
another venue is specifically authorized by law." Wis. Stat.
§ 801.50(3)(a). There is, indeed, a law relevant to this case
that can authorize a different venue——it is Wis. Stat.
§ 227.53(1)(a)3., albeit a different provision from the text
discussed above. This part of the statute says:
If 2 or more petitions for review of the same decision
are filed in different counties, the circuit judge for
the county in which a petition for review of the
decision was first filed shall determine the venue for
judicial review of the decision, and shall order
transfer or consolidation where appropriate.
Wis. Stat. § 227.53(1)(a)3.
24
No. 2016AP1980-W
¶34 This provision was operative in the circuit court
because Clean Wisconsin and the Cochart Petitioners both filed
petitions for judicial review of the same DNR decision, but in
different counties. So the statute gives the circuit court the
authority to override the plaintiff's designation inasmuch as it
specifically instructs the court to "determine the venue for
judicial review of the decision." And it grants the court
authority to transfer or consolidate the cases to actualize that
determination. The court's discretion is broad here——it may
transfer one of the cases so they are both pending in the same
county; or it may transfer both cases to a third county, and it
may consolidate the cases instead of allowing them to proceed as
separate matters.
¶35 Here, the circuit court consolidated the Cochart
Petitioners' case into Clean Wisconsin's case, and left it
venued in Dane County. After consolidation, only the Clean
Wisconsin petition remained, although it then included the
Cochart Petitioners as parties. See Seventeen Seventy-Six
Peachtree Corp. v. Miller, 41 Wis. 2d 410, 414, 164 N.W.2d 278
(1969) (stating that consolidation "contemplates only one action
and one set of pleadings after consolidation"); E. Wis. Ry. &
Light Co. v. Hackett, 135 Wis. 464, 472-73, 115 N.W. 376 (1908)
(same); Harrigan v. Gilchrist, 121 Wis. 127, 309, 99 N.W. 909
(1904) (stating that in consolidating cases, "[n]ecessarily, the
first one properly commenced superseded the other"); Eau Claire
Fuel & Supply Co. v. Laycock, 92 Wis. 81, 83, 65 N.W. 732 (1896)
25
No. 2016AP1980-W
(stating that consequent upon an order of consolidation, "[t]he
second action, under the circumstances, merged in the first").
¶36 By leaving the Clean Wisconsin petition pending in
Dane County, the circuit court determined its venue, but only in
the negative sense of not having ousted the designation already
made. So the question is whether not disturbing Clean
Wisconsin's designation actually negates it. On this point, the
structure of Act 61 advances our understanding of its plain
meaning. The portion in which we are now interested says:
"[A]ll actions in which the sole defendant is the
state . . . shall be venued in the county designated by the
plaintiff unless another venue is specifically authorized by
law." 2011 Wis. Act 61 § 3g; Wis. Stat. § 801.50(3)(a). The
sentence speaks of two possible venues. It prescribes the
"county designated by the plaintiff" as the general rule, and
allows an exception only if there is another venue "specifically
authorized by law."
¶37 Because Wis. Stat. § 227.53(1)(a)3. authorizes the
circuit court to determine venue, it holds out at least the
possibility of "another venue." However, it does not, of its
own force, establish "another venue." The phrase "another
venue," of course, stands in opposition to the one designated by
the plaintiff. That is, if the plaintiff designates Dane
County, "another venue" must be any county but that. Here, the
circuit court determined that Dane County would continue as the
venue for the Clean Wisconsin case. This is not "another
venue," but the very same. Although the circuit court could
26
No. 2016AP1980-W
have determined another venue, it did not actually do so.
Paragraph 801.50(3)(a) operates not on possibilities, but
actualities. If the circuit court had transferred venue to a
county different from the one designated by Clean Wisconsin,
there would have been "another venue" within the meaning of Wis.
Stat. § 801.50(3)(a). Thus, we conclude that "another venue is
specifically authorized by law" only when venue is lawfully
transferred to a county different from the one designated by the
plaintiff. Here, the circuit court did not transfer venue to a
county different from the one Clean Wisconsin had designated;
the venue remained as designated by Clean Wisconsin. So Dane
County cannot be "another venue."
¶38 The respondents came to a different conclusion based,
at least in part, on their understanding of the "unless" clause
as it existed prior to Act 61. However, their interpretation
does not account for the significant change to the statute
occasioned by Act 61. Prior to Act 61, the relevant part of
Wis. Stat. § 801.50(3) said this: "All actions in which the
sole defendant is the state . . . shall be venued in Dane County
unless another venue is specifically authorized by law."
§ 801.50(3) (2009-10). Contrary to the respondents' argument,
Act 61 significantly changed the structure of the statute.
Before the amendment, the main clause of subsec. 801.50(3)
mandated venue in Dane County, while the "unless" clause held
out the possibility that a law might make an alternative venue
available. Thus, the function of the "unless" clause (pre-Act
61) was to potentially extend venue-eligibility to counties
27
No. 2016AP1980-W
other than Dane. It no longer serves that purpose. By
eliminating Dane County as the required venue, Act 61 made all
counties potentially venue-eligible. As a result, the "unless"
clause no longer serves as a means of extending venue-
eligibility as it once did. As discussed above, it now serves
only as a mechanism by which to oust the plaintiff's venue
designation.16
d. The Cochart Petitioners
¶39 There is still the matter of the Cochart Petitioners.
Their petition designated Kewaunee County, but they litigated in
Dane County. If their petition had arrived in Dane County
Circuit Court via a simple transfer-of-venue order, the
exception to the venue-designation rule might have become
operative. Dane County is "another venue" in relation to
16
The Court of Appeals essentially argues that we must give
the "unless" clause the same meaning it had prior to Act 61.
But when the legislature changes the structure of a statute, we
must construe it anew. See State ex rel. Dep't of Agric. v.
Marriott, 237 Wis. 607, 625, 296 N.W. 622 (1941) ("[A]n amended
statute is to be given the meaning that it would have had if it
had read from the beginning as amended."); see also Wis. Stat.
§ 990.001(7) ("A revised statute is to be understood in the same
sense as the original unless the change in language indicates a
different meaning so clearly as to preclude judicial
construction."). The change to the structure and terms of Wis.
Stat. § 801.50(3) (2009-10) so clearly changes the statute's
meaning (as described, supra) that it is impossible to maintain
the pre-Act 61 meaning of the "unless" clause.
The dissent agrees with the Court of Appeals, but neither
of them account for the significant structural changes wrought
by Act 61. See dissent, ¶¶6-9. Nor do either of them offer any
reason we should ignore those changes.
28
No. 2016AP1980-W
Kewaunee County, and if this hypothetical had come to pass, it
would have been specifically authorized by law. An appeal from
that case may have engaged Wis. Stat. § 752.21(1), meaning the
DNR may not have had its selection of appellate venue; the court
of appeals may have been obliged to hear one of the appeals in
District IV. But the circuit court did not simply transfer the
Cochart Petitioners' case——it consolidated it with the Clean
Wisconsin case. So there is no longer a Kewaunee County
designation to compare against venue in Dane County. And
because the surviving case still bears Clean Wisconsin's
designation, that is the point of reference in deciding whether
the circuit court determined "another venue" within the meaning
of Wis. Stat. § 801.50(3)(a). It did not. So we must conclude
that Clean Wisconsin's designation remains in effect for this
case.
¶40 That brings us back to venue for the appeal. Because
Clean Wisconsin designated the circuit court venue within the
meaning of Wis. Stat. § 801.50(3)(a), appellate venue must lie
in "a court of appeals district selected by the appellant[,] but
the court of appeals district may not be the court of appeals
district that contains the court from which the judgment or
order is appealed." Wis. Stat. § 752.21(2). The DNR selected
District II, which is a permissible selection because District
IV contains the Dane County Circuit Court. Consequently, it is
the court of appeals' plain duty to hear the DNR's appeal in
District II.
29
No. 2016AP1980-W
C. Inadequate Remedy
¶41 Next, we determine whether an appeal would be an
inadequate remedy. We will not issue a supervisory writ when an
appeal provides an adequate remedy. Kalal, 271 Wis. 2d 633,
¶17; State ex rel. Lynch v. Cty. Ct., Branch III, 82
Wis. 2d 454, 460, 262 N.W.2d 773 (1978) (stating that a party
must show that "ordinary remedies, by appeal or otherwise, are
inadequate"). Sometimes appellate review in the normal course
of events is inadequate for the simple fact that it comes after
the proceeding has already occurred: "The inadequacy of the
remedy of appeal may arise from the fact that appeal would come
too late for effective redress." Lynch, 82 Wis. 2d at 461. And
sometimes an appeal is inadequate because even post-trial
appellate review is so limited that the error is effectively
insulated from correction. This case implicates both varieties
of inadequacy.
¶42 We have previously recognized that trial court venue
can present an issue requiring review before entry of final
judgment. The pathway to that review has varied over the years,
and has depended largely on what our rules of civil procedure
have said at the time. For example, it was once possible to
appeal a venue order before entry of final judgment.17 Under
17
W. Bank of Scotland v. Tallman, 15 Wis. 101, 101 (1862)
("It is claimed by the respondents' counsel that the order
[denying change of venue] was not appealable. But we clearly
think it is, upon the ground stated in the opinion of Justice
Cole in the case of Oatman v. Bond.").
30
No. 2016AP1980-W
that circumstance, we said mandamus was an inappropriate remedy
because we could timely reach the issue via an appeal. State ex
rel. Johnson v. Washburn, 22 Wis. 95, 97 (1867) ("[B]ecause an
order improperly refusing to change the place of trial is an
appealable order, we deny the application for the writ in this
case."). But once interlocutory appeals of venue orders were no
longer available as a matter of course, we concluded that
mandamus could be a proper pathway for addressing improper
venue. In State ex rel. Spence v. Dick, 103 Wis. 407, 409, 79
N.W. 421 (1899), we observed that "[u]nder the present statute
regulating appeals from orders, however, orders changing the
venue are not appealable." Id. (citations omitted). This meant
that "the reason of the decision in State ex rel. Johnson v.
Washburn disappear[ed], and mandamus [became] an appropriate
remedy." Id.; see State ex rel. Arthur v. Proctor, 255
Wis. 355, 357, 38 N.W.2d 505 (1949) ("[B]ecause an order denying
a motion for change of venue was nonappealable under the
statutes, mandamus was the proper remedy."); State ex rel. T. L.
Smith Co. v. Super. Ct. of Dane Cty., 170 Wis. 385, 385, 175
N.W. 927 (1920) (same).
¶43 The lack of an appellate pathway in this case is
analogous to Spence. That is to say, our rules of appellate
procedure do not give the DNR the right to appeal the Court of
Appeals' venue order. Strictly speaking, there is no right of
31
No. 2016AP1980-W
appeal to this court at all.18 We are not, primarily, an error-
correcting tribunal,19 and we normally hear only those cases that
present something more than just an error of law. If the DNR
must wait for the court of appeals to issue a decision on the
merits, its error-correcting recourse would be a petition for
review. The criteria for granting such a petition, however, do
not encompass correcting an appellate tribunal's simple error of
law.20 And even though those criteria do not cabin our
discretion, they fairly represent the most common reasons we
grant review. Therefore, a successful petition for review in
this case would depend on a serendipitous confluence between
(1) the venue error, and (2) a "plus" factor, such as we
describe in Wis. Stat. § (Rule) 809.62(1r) (criteria for
granting review).
¶44 Because a petition for review in this case would
require a "plus" factor just to bring the venue issue before us,
18
"Supreme court review is a matter of judicial discretion,
not of right . . . ." Wis. Stat. § (Rule) 809.62(1r).
19
The court of appeals' "primary function is error
correcting"; "the supreme court's primary function is that of
law defining and law development." Cook v. Cook, 208
Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997).
20
We generally do not review a case unless it presents a
"real and significant question of federal or state
constitutional law," or we see a need to "establish[],
implement[] or chang[e] a policy within" our authority, or we
need to "develop, clarify or harmonize the law," or the court of
appeals' decision either conflicts with controlling authority or
is in need of re-examination "due to the passage of time or
changing circumstances." Wis. Stat. § (Rule) 809.62(1r).
32
No. 2016AP1980-W
it is a mechanism too chancy to constitute an adequate remedy.
Faced with a similar conundrum, at least one other court came to
the same conclusion. In In re Volkswagen of America, Inc., 545
F.3d 304 (5th Cir. 2008), the Fifth Circuit considered whether
to issue a writ of mandamus requiring transfer of venue on forum
non conveniens grounds. Id. at 308-09. The court noted that
interlocutory review of the district court's order was not
available, and that a new trial following appeal from the final
judgment would be possible only if the appellant could
demonstrate it would have prevailed in the proper forum. See
id. at 318-19. Consequently, the context of the venue question
on post-trial appellate review would effectively shield it from
resolution. The court concluded an appeal under those
circumstances would be inadequate, and ordered a writ of
mandamus requiring transfer of venue. Id.; see In re Lloyd's
Register N. Am., Inc., 780 F.3d 283 (5th Cir.), cert. denied sub
nom. Pearl Seas Cruises, LLC v. Lloyd's Register N. Am., Inc.,
136 S. Ct. 64 (mem.) (2015) (same); In re EMC Corp., 677
F.3d 1351, 1355 (Fed. Cir. 2012) (same); In re Apple, Inc., 602
F.3d 909, 912 (8th Cir. 2010); In re Nat'l Presto Indus., Inc.,
347 F.3d 662, 663 (7th Cir. 2003) (applying this analysis under
the irreparable harm rubric).
¶45 We conclude that a petition to review the court of
appeals' eventual decision on the merits is an inadequate remedy
to address the question of appropriate appellate venue. Our
review of that question should not depend on the existence of an
33
No. 2016AP1980-W
additional "plus" factor that would support a petition for
review.
D. Irreparable Harm
¶46 Finally, we determine whether the DNR would suffer
irreparable harm if this court denies the supervisory writ.
Kalal, 271 Wis. 2d 633, ¶17 (stating that a supervisory writ
will issue only upon a showing of "grave hardship or irreparable
harm" in its absence). We conclude that it would——for largely
the same reasons that make a petition for review an inadequate
remedy.
¶47 The legislature granted appellants in the DNR's
procedural posture the right to select appellate venue. It is
nearly tautological to observe that losing a statutorily-granted
right is a harm. Losing the right with no means to recover it
makes the harm irreparable. As described above, a petition for
review is an uncertain and ill-suited vehicle for addressing
whether the court of appeals heard a case in the proper
district. Because the question would, therefore, be unlikely to
receive appellate attention at all, the DNR would be left with
no sure means by which to remedy the deprivation of its
statutory right. That makes the loss, by definition,
irreparable. See, e.g., Proctor, 255 Wis. at 357 (concluding
that petition for writ of mandamus is the proper procedure
because the venue order is non-appealable); Super. Ct. of Dane
Cty., 170 Wis. at 385 (same); Spence, 103 Wis. at 409
(indicating that the denial of an "absolute" right to change of
34
No. 2016AP1980-W
venue in a different county constituted "substantial damage,"
making mandamus appropriate).
¶48 The dissent would conduct what it characterizes as a
"mandatory harmless error analysis," dissent, ¶51, which would
deny the appellant its statutorily-granted right unless the
choice of venue is outcome-determinative. The dissent says
that, because District IV's judges are just as fair as the
judges of any other district, the DNR cannot demonstrate the
appeal would resolve differently if heard elsewhere. See id.,
¶52. So the dissent would make Wis. Stat. § 752.21(2) a dead
letter. If an appellant does not have the right to select venue
unless it can demonstrate a panel's judges are "unfair," then
this is just a species of recusal statute. Functionally, that
would mean the choice of venue lies with the court of appeals
(as occurred here), not the appellant——an exceedingly odd
outcome for a statute that says the exact opposite. But we have
no need or occasion to question the fairness of District IV's
judges because § 752.21 is a venue selection statute, not a
recusal statute. We will not read it out of existence by
recasting it as one.
III. CONCLUSION
¶49 We conclude that the DNR has met the requirements for
the issuance of a supervisory writ. We, therefore, grant the
petition for a supervisory writ and vacate the August 31, 2016,
Court of Appeals order transferring the appeal in this case from
District II to District IV. The Court of Appeals shall hear the
appeal in District II.
35
No. 2016AP1980-W
By the Court.—The petition for a supervisory writ is
granted; the rights are declared as stated; and the stay on
appeal is lifted.
36
No. 2016AP1980-W.ssa
¶50 SHIRLEY S. ABRAHAMSON, J. (dissenting). The
majority contravenes (1) the court's duty to undertake a
mandatory harmless error analysis; (2) the statute's text; (3)
the statutory history; (4) the legislative history; and (5) the
meaning of "plain legal duty."
¶51 First, the majority does not undertake a mandatory
harmless error analysis as required by our case law. See State
v. Reyes Fuerte, 2017 WI 104, ¶31-33, 378 Wis. 2d 504, 904
N.W.2d 773 (justifying requiring the application of harmless
error analysis to a statutory violation because the harmless
error statute predated the statute that was violated).1
¶52 No one court of appeals district is more fair than any
other, and when the state is the appellant, it does not appear
that any one court of appeals district is more convenient than
any other. Where, then, is the harm that justifies an expensive
appeal in the instant case paid for by taxpayers when District
IV is just as fair and arguably more convenient for the DNR than
District II?
¶53 This court is barred from picking and choosing when it
will engage in a mandatory harmless error analysis and when it
will not. The court has explicitly declared that harmless error
1
See also State v. Reyes Fuerte, 2017 WI 104, ¶¶57-58, 378
Wis. 2d 504, 904 N.W.2d 773 (Abrahamson, J., dissenting)
("Apparently, hereafter, every statute enacted and every case
decided after 1897 is subject to a mandatory harmless error
analysis . . . ."); State v. Harvey, 2002 WI 93, ¶47 n.12, 254
Wis. 2d 442, 647 N.W.2d 189 (citing Wis. Stat. § 805.18(2) and
concluding: "The harmless error rule, however, is an injunction
on the courts, which, if applicable, the courts are required to
address regardless of whether the parties do.").
1
No. 2016AP1980-W.ssa
"is an injunction on the courts, which, if applicable, the
courts are required to address"2 and is mandatory for violations
of statutes that were passed after 1897.3 The majority offers no
explanation for failing to engage in a harmless error analysis
in the instant case.
¶54 Second, the majority's statutory interpretation is
contrary to the statute's text. "When the same term is used
throughout a chapter of the statutes, it is a reasonable
deduction that the legislature intended that the term possess an
identical meaning each time it appears." Bank Mut. v. S.J.
Boyer Const., Inc., 2010 WI 74, ¶31, 326 Wis. 2d 521, 785
N.W.2d 462. The phrase "designated by the plaintiff" appears
twice in Wis. Stat. § 801.50. In § 801.50(2)(d), the phrase
appears in order to indicate that if none of the situations
outlined in § 801.50(2)(a)-(c) applies directing venue to a
particular county, "venue shall be in any county designated by
the plaintiff." In § 801.50(2)(d), the phrase "designated by
the plaintiff" clearly contemplates a choice being made by the
plaintiff. The phrase should be given the same meaning in
§ 801.50(2)(d)4 and § 801.50(3)(a).5
2
Harvey, 254 Wis. 2d 442, ¶47 n.12.
3
Reyes Fuerte, 378 Wis. 2d 504, ¶31-33.
4
"If the provisions under par. (a) to (c) do not apply,
then venue shall be in any county designated by the plaintiff."
5
"Except as provided in pars. (b) and (c), all actions in
which the sole defendant is the state . . . shall be venued in
the county designated by the plaintiff unless another venue is
specifically authorized by law."
2
No. 2016AP1980-W.ssa
¶55 Third, the majority opinion is contrary to the
statutory history of Wis. Stat. § 801.50(3). In 2011, the
statute was amended to change the default venue for actions in
which the sole defendant is the state from Dane County to the
venue "designated by the plaintiff." However, the amended
statute retained the language "unless another venue is
specifically authorized by law," a phrase that appeared in the
prior statute. Wis. Stat. § 801.50(3) (2009-10) ("All actions
in which the sole defendant is the state . . . shall be venued
in Dane County unless another venue is specifically authorized
by law.").
¶56 Prior to the amendment, the phrase "unless another
venue is specifically authorized by law" operated to direct
Chapter 227 actions in which the state was the sole defendant to
be venued in Dane County unless some other statute directed
venue to be elsewhere.6 The majority flips the "unless" clause
in Wis. Stat. § 801.50(3)(a) on its head. Now, according to the
majority, a plaintiff may designate the venue even if a
particular venue is mandated by statute, and the "unless" clause
means that there can be a lawful venue change after the case is
filed.
¶57 The majority claims that the analysis of the statutory
history set forth above ignores "the significant structural
6
For example, Wis. Stat. § 227.53(1)(a)3. provides: "If
the petitioner is a resident, the proceedings shall be held in
the circuit court for the county where the petitioner
resides . . . ."
3
No. 2016AP1980-W.ssa
changes wrought by Act 61." Majority op., ¶38 n.16. The
"significant structural changes" are of the court's own making,
not the legislature's. Did the legislature intend, by changing
"shall be venued in Dane County" to "shall be venued in the
county designated by the plaintiff" in Wis. Stat. § 801.50(3),
to establish a framework wherein a plaintiff will practically
never have a choice of venue,7 but appellants will almost always
have a choice of venue? This result appears absurd.
¶58 It is much more likely that the legislature did not
intend to create such a lopsided framework and instead intended
to create a framework wherein an appellant's ability to choose
the venue is necessarily tied to the plaintiff's having a choice
of venue at the trial court level. Interpreting Wis. Stat.
§ 801.50(3)(a) to entail a choice of venue by a plaintiff
accomplishes two objectives: First, it avoids the absurd
framework that the court now establishes. Second, it does not
disturb the meaning of the "unless" clause, which was not
altered by the legislature's amendment.
¶59 Fourth, the majority opinion is contrary to the
statute's legislative history. The Legislative Reference
Bureau's analysis of 2011 S.B. 117, a document distributed to
all legislators, explained that the bill "permitted" plaintiffs
to designate the county within which to bring an action. The
7
A review of the Wisconsin Statutes reveals that in many
situations a statute directs that venue be in a particular
county. See, e.g., Wis. Stat. §§ 801.50(2), 801.50(3)(b),
801.50(3)(c), 227.40(1).
4
No. 2016AP1980-W.ssa
use of the word "permit" is telling. The word "permits"
contemplates a choice. How can the Administrative Petitioners
be said to have been "permitted" to designate venue when by
operation of Wis. Stat. § 227.53(1)(a)3., the Administrative
Petitioners had but one choice——file their respective petitions
in the county in which they reside? The legislative history
reflects a reciprocity of choice between a plaintiff and an
appellant such that only if a plaintiff is allowed to choose
venue in the circuit court will an appellant be allowed to
choose venue on appeal.
¶60 The Fiscal Estimate Narrative for 2011 S.B. 117,
another document circulated to all lawmakers, explicitly
described the operation of the bill as allowing plaintiffs to
choose their venue under the statute.
¶61 The majority faults a court's reliance on documents
such as the Legislative Reference Bureau's analysis of the bill
and the Fiscal Estimate Narrative, suggesting that nobody has
the slightest idea what impact these documents had on individual
legislators and casting doubt on whether anyone reads the
documents.
¶62 Co-equal branches of government owe respect to each
other.8 I do not join the majority in belittling the legislative
8
Courts presume that the legislature respects the work of
the courts. Thus, this court presumes that the legislature is
aware of existing case law when it passes legislation, Czapinski
v. St. Francis Hosp., Inc., 2000 WI 80, ¶22, 236 Wis. 2d 316,
613 N.W.2d 120 ("[T]he legislature is presumed to act with
knowledge of the existing case law.").
(continued)
5
No. 2016AP1980-W.ssa
branch, disparagingly portraying legislators as having little if
any knowledge about the laws they enact.
¶63 At a minimum, a court should presume that legislators
are aware of the explanatory material the Legislative Reference
Bureau must set forth in each bill.9 The legislature requires
the Legislative Reference Bureau to draft the language of each
and every bill to be introduced in the legislature and generate
explanatory material for each bill in plain English, explaining
the bill's impact and effect.10 Although explanatory material in
a bill is not dispositive in a court's interpretation of a
statute, the explanatory material required to be available to
all legislators has been relied upon by this court in statutory
interpretation. The interpretation of a statute in the
This court respects the work of the legislature. A
judicial construction of a statute is entitled to more weight
when the legislature has not acted to change that judicial
construction, Estate of Miller v. Storey, 2017 WI 99, ¶52, 378
Wis. 2d 358, 903 N.W.2d 759 (upholding a judicial interpretation
of a statute because "the legislature had ample opportunity to
act on or repeal the judicial interpretation of [a
statute] . . . [b]ut the legislature did not act on or repeal
the interpreted language").
It is, of course, one of the judicial branch's legal
fictions to declare that the legislature is aware of existing
case law when enacting legislation. The court itself may not
always be aware of its own existing case law when it decides a
case.
9
The Legislative Reference Bureau is required to prepare
Prefatory Notes (Analysis to Bills) for each bill. Wis. Stat.
§ 13.92(1)(b)2. For a description of the work of the Bureau,
see Wisconsin Legislative Reference Bureau, Bill Drafting Manual
2017-2018, ch. 4.
10
Wis. Stat. §§ 13.92(1)(b)1., 13.92(1)(b)2.
6
No. 2016AP1980-W.ssa
explanatory note prepared by the legislative staff that drafted
the text of the statute should not, in every instance, be
totally ignored by a court.11
¶64 Fifth and finally, the majority errs in its discussion
of "plain legal duty." Quoting State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, ¶22, 271 Wis. 2d 633, 681
N.W.2d 110, the majority acknowledges that "[a] plain duty is
one that is 'clear and unequivocal and, under the facts, the
responsibility to act [is] imperative.'" Majority op., ¶11.
The majority then concludes that "clear and unequivocal" and
"the responsibility to act is imperative" do "not require the
duty to be settled or obvious," quoting Madison Metropolitan
School District v. Circuit Court for Dane County, 2011 WI 72,
¶84, 336 Wis. 2d 95, 800 N.W.2d 442.12 Majority op., ¶11. The
majority and Madison Metropolitan School District's defining of
"plain duty" in this way is not supported by the case law. In
State ex rel. Two Unnamed Petitioners v. Peterson, the court
reaffirmed that the obligation of a judge to correctly apply the
law "is not the type of plain legal duty contemplated by the
supervisory writ procedure." 2015 WI 85, ¶81, 363 Wis. 2d 1,
11
See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶69, 271 Wis. 2d 633, 681 N.W.2d 110 (Abrahamson, J.,
concurring) (positing a non-exhaustive list of various forms of
history that have been helpful to courts in interpreting
statutes).
12
"'[C]lear and unequivocal' does not require the duty to
be settled or obvious. There may be a plain duty even when it
involves 'a novel question of law requiring harmonization of
several statutory provisions.'" Majority op., ¶11 (citation
omitted).
7
No. 2016AP1980-W.ssa
866 N.W.2d 165. The Two Unnamed Petitioners court declared that
for a duty to be plain, clear, and unequivocal, it must also be
settled and obvious. Id., ¶81 (quoting Kalal, 271 Wis. 2d 633,
¶24). To hold otherwise "would extend supervisory jurisdiction
to a virtually unlimited range of decisions involving the
finding of facts and application of law." Kalal, 271
Wis. 2d 633, ¶24. How can the majority square this language
from Kalal, which was reaffirmed in Two Unnamed Petitioners,
with Madison Metropolitan School District? I do not think it
can.
¶65 For these reasons, I dissent.
¶66 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissenting opinion.
8
No. 2016AP1980-W.ssa
1